LD Munich, October 28, 2026, order to lay open books, UPC_CFI_1160/2026

• R. 191 RoP disclosure addresses the substantive question “What happened?”.
• R. 141 RoP addresses “What are the financial details of what happened?” and serves the calculation of damages.

As a procedural rule, R. 141 RoP applies regardless of the substantive damages law governing a given period. The list in R. 141(c) RoP is not exhaustive (“in particular”), so information on non-infringing products is not categorically excluded. Proportionality applies under Art. 42 UPCA, the Preamble to the RoP, Art. 20 UPCA and Art. 10(3) and 13(1) of the Enforcement Directive. Under its necessity element, a request must be rejected where it is clear that the information can never be useful for calculating damages.

Leave to appeal was granted because this is the first order applying the rules on laying open books.

Profits from consumables and related accessory devices designed for use with the infringing device are recoverable. Profits that are causally related but too remote are not attributed.

Damages must not be punitive. For periods before the UPCA entered into force, the relevant national law applies. Because national laws are harmonised by the Enforcement Directive, the court presumes no significant differences. A party relying on a difference must plead and prove it.

Where Meril offered at least one infringing Myval device in a tender, subsequent sales of the “Other Relevant Devices” (Octacor, Octapro, Octapro+) and their accessories under that tender are causally linked to the infringing offer. They are also directly linked to the invention, because the invention was incorporated in the device used to win the tender.
Disclosure of information on the “Other Relevant Devices” is therefore limited to these substitution scenarios. The extent to which such profits will be considered is left for the damages stage.

Edwards argued that Meril used the infringing products as a springboard: to enrol patients in the LANDMARK and COMPARE trials, to obtain CE marks for successor devices without “significant changes”, and to build a distribution network and relationships with cardiologists.

Edwards did not establish that these activities constitute use under Art. 25 and 26 UPCA. Even if they did, later sales of non-infringing products lack a sufficient link to the invention, which concerns the folding of tabs within the leaflet structure. The successor devices use a different leaflet structure.

BGH, Polsterumarbeitungsmaschine (- X ZR 30/21 -, GRUR 2024, 273) did not support Edwards. Under that decision, the causal link is lacking where profits stem from an increased market profile or the reinvestment of profits rather than from the technical characteristics of the invention.

Edwards’ narrowing of its requests amounted to an unconditional partial withdrawal. The court granted leave under Rule 263.3 RoP.